The last straw

Labour & European Law ReviewWeekly Issue 98 - March 200502 March 2005

In general terms, it is a high risk strategy for employees to resign and claim constructive dismissal. But it is even more so when the last act relied on was not in itself unreasonable, although it was the "final straw" in a series of acts.

The Court of Appeal has now said in London Borough of Waltham Forest v Omilaju (2005, IRLR 35) that because the particular straw in this case was perfectly justifiable on the part of the employer, Mr Omilaju's case could not succeed.

What were the basic facts?

Mr Omilaju worked in Waltham Forest's housing department for nine years until 2001. Between February 1998 and August 2000, he issued five sets of proceedings against the council alleging unlawful direct discrimination, victimisation and interference with trade union activity. All his claims were dismissed.

The council, however, refused to pay Mr Omilaju's salary during July and August 2001 when he was absent from work (without leave) to attend the hearing. He could have applied for special unpaid or annual leave, in accordance with the council's rules, but chose not to do so.

He then resigned in September 2001, claiming constructive unfair dismissal, race discrimination, harassment and victimisation. He said that the failure to pay his salary was a breach of the express terms of his contract and had destroyed his trust and confidence in his employer. This, he said, was "the last straw in a series of less favourable treatments that I have been subjected to over a period of years".

What did the tribunals decide?

The employment tribunal dismissed his claim. It said that the council's refusal to pay him was "perfectly reasonable and justifiable conduct of his employer acting fully in accordance with the terms of the applicant's contract". It could not, therefore, be relied on as the "last straw" in a series of acts.

The appeal tribunal disagreed and allowed Mr Omilaju's appeal against the decision that he had not been constructively dismissed.

What did the Court of Appeal decide?

The Court of Appeal, however, found against him. It said that the test for constructive dismissal is whether the employer's conduct amounted to a repudiatory breach of the contract of employment.

It recognised that an employee may end up resigning over a relatively minor incident, but which is the "last straw" in a series of incidents. However, it emphasised that although the final straw may be relatively insignificant, it must not be utterly trivial. But what quality does a final straw have to have for an employee to rely on it as a repudiation of the contract?

What is a"Final Straw"?

According to the Court of Appeal, the "only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer."

It said that the last straw "must contribute, however slightly, to the breach of the implied term of trust and confidence." It emphasised that the final straw does not have to be "unreasonable" or "blameworthy" conduct, although it may often be.

It added that an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in their employer.

The test of whether the employee's trust and confidence has been undermined must be objective.

In this case, Mr Omilaju could not rely on the "final straw" doctrine because he had resigned in response to his employer's failure to pay him. It therefore agreed with the tribunal that this was perfectly justifiable behaviour.

Comment

Despite the court's comment that the action by the employer does not have to be unreasonable or blameworthy, there are very few cases in which conduct that is otherwise reasonable and unblameworthy could amount to a final-straw type act.